Report of the board of directors ex article 3:6 Belgian Code of Companies and Associations
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Pursuant to articles 3:5 and 3:6 of the Belgian Code of Companies and Associations, we are hereby reporting to you on the
operations of Nyrstar NV (the “Company”) with respect to the financial year as from 1 January 2020 until 31 December 2020.
This report comprises also the corporate governance statement and remuneration report in accordance with article 3:6 §2 and
§3 of the Belgian Code of Companies and Associations as attached to this report in annex C and D respectively.
1. Company facts and activities
The Company has its registered office at Zinkstraat 1, Balen, Belgium. The Company has been listed on Euronext Brussels
since 29 October 2007.
Until 31 July 2019, the Company was the holding company of the Nyrstar Group (consisting of Nyrstar NV and its subsidiaries).
In addition, until 31 July 2019 the Company delivered a number of support services to the Nyrstar Group, such as, but not
limited to, regional purchasing, IT, environment, innovation and development, continuous improvement and legal support
services. Following the completion of the restructuring of the Nyrstar group at 31 July 2019 (described in more detail in section
2 below), the Company intended to continue trading as an investment company, holding 2% of the equity in NN2 NewCo
Limited (“NN2”) for the benefit of the Company’s shareholders.
At 9 December 2019 the Extraordinary General Meeting (“EGM”) of the Company was held to deliberate on the continuation
of the Company's activities and a proposed capital decrease. The shareholders rejected the continuation of the Company's
activities. As such, the 31 December 2020 financial statements of the Company are prepared on a discontinuity basis. As the
result of an order of 26 June 2020 of the President of the Antwerp Enterprise Court (Antwerp division), at the request of a
group of shareholders, the Company is currently prohibited from holding a general meeting with the dissolution of the Company
on the agenda until three months after a final decision on the appointment of a college of experts (see below, under section
8.2) will have obtained res judicata effect.
Under article 3:23 of the Belgian Code of Companies and Associations, a parent company that controls one or more
subsidiaries is required to prepare consolidated financial statements, unless such subsidiaries have, in view of the consolidated
assets, financial position or results that are only of a negligible significance. Given as at 31 December 2020 Nyrstar NV did
not control any significant subsidiary, the Company was not required to prepare consolidated financial statements for the year
ended 31 December 2020. In accordance with article 12, §3, final paragraph, of the Royal Decree of 14 November 2007, the
Company has prepared the 31 December 2020 standalone statutory financial statements in accordance with Belgian GAAP.
2. Restructuring of the Nyrstar group
In October 2018, the former Nyrstar group initiated a review of its capital structure (the "Capital Structure Review") in response
to the challenging financial and operating conditions being faced by the Nyrstar group. The Capital Structure Review identified
a very substantial additional funding requirement that the Nyrstar group was unable to meet without a material reduction of
the Nyrstar group's indebtedness. As a consequence, the Capital Structure Review necessitated negotiations between the
Nyrstar group's financial creditors that ultimately resulted in the restructuring of the Nyrstar group, which became effective on
31 July 2019 (the “Restructuring”). As a result of the Restructuring, Trafigura Group Pte. Ltd., via its indirect 98% ownership
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of the new holding company NN2 Newco Limited (“NN2”), became the ultimate parent company of the former (direct and
indirect) subsidiaries of the Company (the "Operating Group”), with the remaining 2% stake in NN2 (and thereby the Operating
Group) being owned by the Company.
The agreements to which the Company is currently a party are discussed in further detail below.
2.1. The NNV-Trafigura Deed
The lock-up agreement (“Lock-Up Agreement”) entered into on 14 April 2019 between, among others, the Company and
representatives of its key financial creditor groups, envisaged that the Company, Trafigura Pte Ltd (“Trafigura”) and Nyrstar
Holdings Limited ("Nyrstar Holdings", a Trafigura special-purpose vehicle incorporated, amongst other things, for the purpose
of implementing the Restructuring) would enter into a deed confirming their agreement in respect of (i) certain steps necessary
for the implementation of the restructuring as envisaged in the Lock-Up Agreement and (ii) the terms of the ongoing relationship
between the Company and the Trafigura group (the "NNV-Trafigura Deed"). The NNV-Trafigura Deed was duly executed on
19 June 2019. Certain key terms of the NNV-Trafigura Deed can be summarised as follows.
- Distribution policy: under the NNV-Trafigura Deed, Trafigura and Nyrstar Holdings have assumed obligations which
are intended to ensure, as far as possible, that any profits realised by the Operating Group are distributed to the
shareholders of NN2 (including the Company as 2% minority shareholder). To this end, Nyrstar Holdings has agreed
to procure that: (i) the board of NN2 will meet at least on an annual basis to assess whether NN2 has any profits
lawfully available for distribution (and if so, NN2 will make such distribution in accordance with applicable law); and
(ii) NN2 and the other members of the Operating Group will not, under the terms of any financing or other agreement
to which they are or shall be party (other than financing or other agreements entered into on arm's length terms with
third parties), be subject to any limitations on making dividends or other distributions to their respective shareholders.
- Drag / tag rights: under the terms of the NNV-Trafigura Deed, if Nyrstar Holdings or any Trafigura entity or entities
which hold(s) the 98% stake in NN2 (being the "Majority Shareholder(s)") proposes at any time a transfer of any right
or interest to a third party purchaser (on arms' length terms, for cash or non-cash consideration) that would result in
a member of the Trafigura group holding 50% or less of the shares in NN2, then the Majority Shareholder(s) proposing
the transfer will have the right to oblige the Company to transfer (a "drag right"), and the Company will have an
equivalent right to participate in such transfer (a "tag right"), its entire 2% equity stake in NN2 on the same terms and
for the same consideration per share as for the Majority Shareholder(s).
- NN2 change of control: the NNV-Trafigura Deed obliges Trafigura and Nyrstar Holdings to procure that the Trafigura
group shall only implement any intragroup reorganisation which would result in at least 75% of the net assets (by
value) of the Operating Group no longer being held by NN2 but being held by another member of the Trafigura group
(the "Replacement HoldCo"), if (i) it is bona fide and undertaken in good faith, (ii) the financial position of Replacement
Holdco is substantially the same as that of NN2 immediately prior to such intragroup reorganisation, (iii) arrangements
are put in place such that shareholders of the Replacement Holdco (including the Company) have substantially
equivalent rights and obligations with respect to Replacement Holdco as they did with respect to NN2, and (iv) the
Company has an equity interest in the Replacement Holdco equivalent to its equity interest in NN2 immediately prior
to the intragroup reorganisation, with substantially the same rights and protections. If such conditions are met, then
the Company shall take all steps and provide such reasonable assistance as is necessary to effectuate the intragroup
reorganisation, and shall cooperate in good faith. Any costs reasonably incurred by the Company in doing so
(including reasonable advisor fees), shall be borne by Trafigura.
2.2. The Put Option Deed
Pursuant to the NNV-Trafigura Deed, the Company and Trafigura also agreed that Trafigura shall grant to the Company an
option to require a Trafigura entity to purchase the Company's entire interest in NN2. The terms of this option are set out in a
separate deed, dated 25 June 2019, between the Company, Trafigura and Nyrstar Holdings (the "Put Option Deed"). Under
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the terms of the Put Option Deed, the Company can put all (but not only a part) of its 2% holding in NN2 to Trafigura at a price
equal to EUR 20 million (the "Put Option"). . We refer in this respect to the related party disclosures included in the annual
accounts for the financial year ended 31 December 2020 in respect of the mandatory prepayment obligations under the Limited
Recourse Loan Facility (as defined below) that will apply to the proceeds of the Put Option. The Put Option can be exercised
by the Company until 31 July 2022, subject to limited triggers allowing earlier termination of the Put Option before 31 July
2022.
2.3. Release from parent company guarantees in favour of Trafigura
As stated above, prior to the effective date of the Restructuring which was 31 July 2019 (the “Restructuring Effective Date”),
the Company was the ultimate parent company of the Nyrstar group, and had previously issued various parent company
guarantees (the “PCGs’) in respect of the obligations of its subsidiaries, including, but not limited to, two parent company
guarantees (the "Trafigura PCGs") granted in respect of the primary financial obligations of the Company's indirect subsidiary
at that time, Nyrstar Sales & Marketing AG ("NSM"), to Trafigura, namely under the USD 650 million Trade Finance Framework
Agreement ("TFFA") and the USD 250 million Bridge Finance Facility Agreement ("BFFA"). The Trafigura PCGs as well as all
other security and / or guarantees provided to Trafigura by the Operating Group in respect of the TFFA and BFFA, were
released in full on the Restructuring Effective Date.
2.4. Release from parent company guarantees in favour of third parties and the Company's rights to indemnification by NN2
under the NNV-NN2 SPA
Prior to, and as part of the implementation of, the Restructuring, the Company entered into an agreement for the sale and
transfer by the Company of substantially all of its assets including 100% of its shareholding in Nyrstar Netherlands (Holdings)
BV and also its holdings (direct and indirect) in its subsidiaries, but excluding its shares in NN1, to NN2 (the “NNV-NN2 SPA”).
Under the NNV-NN2 SPA, the Company benefits from contractual agreements with NN2 and Trafigura in respect of its release
from, or indemnification for, liabilities for existing financial indebtedness and obligations owed to third parties in respect of
financial, commercial or other obligations of the then current members of the Operating Group (the "PCGs"), such that those
third parties should no longer have recourse to the Company. The release and / or indemnification obligations of NN2 from
which the Company benefits can be summarised as follows.
- Release of PCGs and general indemnity: The NNV-NN2 SPA includes a commitment by NN2 to use reasonable
endeavors to procure the release of obligations owed by the Company under third-party PCGs. This obligation is
combined with an obligation on NN2 to indemnify the Company, to the extent such PCGs are not released, for any
and all liabilities in relation to such PCGs in respect of the failure by the applicable member of the Operating Group
to comply fully with its principal obligations.
- Indemnity for specified historic liabilities: Further, the NNV-NN2 SPA also contains an obligation on NN2 to indemnify
the Company, to the extent not covered by the release and/or indemnification of PCGs mentioned above, in respect
of certain specified liabilities, including certain liabilities arising in relation to certain historic disposals by the former
Nyrstar group and/or from certain historic mine closures, which are specified in a schedule to the NNV-NN2 SPA.
- Limitation on recourse to the Company of former subsidiaries: To limit and release further any financial obligations
on the Company, the NNV-NN2 SPA obliges NN2 to procure that, and the NNV-Trafigura Deed obliges Trafigura to
procure that, no former subsidiaries of the Company will make any demands for payment from the Company except
(i) under the Limited Recourse Loan Facility, (ii) as otherwise agreed following the completion of the Restructuring;
or (iii) to the extent that the Company has sufficient funds available (excluding any dividends or sale proceeds in
respect of the Company's direct 2% shareholding in NN2).

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